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In re J.G.M.

Court of Appeals of Texas, Twelfth District, Tyler

July 24, 2019

IN THE INTEREST OF J.G.M., D.M., L.G.M. & L.E.M., CHILDREN

          Appeal from the 307th District Court of Gregg County, Texas (Tr.Ct. No. 2017-1506-DR)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice

         L.M. appeals the termination of his parental rights. In one issue, he challenges the factual sufficiency to support the finding that termination was in the best interests of the children. We affirm.

         Background

         A.W.[1] is the mother of J.G.M., D.M., L.G.M., and L.E.M. L.M. is the father of D.M., L.G.M., and L.E.M. J.G.R.M.[2] is the father of J.G.M. On August 7, 2017, the Department of Family and Protective Services (the Department) filed an original petition for protection of the children, for conservatorship, and for termination of L.M.'s, A.W.'s, and J.G., R.M.'s parental rights. The Department was appointed temporary managing conservator of the children, and L.M. and A.W. were appointed temporary possessory conservators with limited rights, duties, access, and possession.

         At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that L.M. engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (F), (J), and (O) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between L.M., D.M., L.G.M., and L.E.M. is in the children's best interest. Based on these findings, the trial court ordered that the parent-child relationship between L.M., D.M., L.G.M., and L.E.M. be terminated. This appeal followed.

         Termination of Parental Rights

         Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). Because a termination action "permanently sunders" the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.-El Paso 1998, no pet.).

         Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. Tex. Fam. Code Ann. § 161.001 (West Supp. 2018); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.-Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. Tex. Fam. Code Ann. § 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. Tex. Fam. Code Ann. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.

         The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. Tex. Fam. Code Ann. § 161.001; In re J.J., 911 S.W.2d at 439. Clear and convincing evidence means "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2019). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.

         Standard of Review

         The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court's findings. Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied).

         Best Interest of the Child

         In his sole issue, L.M. argues the evidence is factually insufficient to support a finding that termination of his parental rights is in the children's best interest. In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may ...


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